Jacobs v. Bealmear

Brent, J.,

delivered the opinion of the Court.

A motion has been made to dismiss this appeal, and was heard at the same time that the case was argued upon its merits. We would be well satisfied if it could be entertained, as it presents some interesting questions, which have been argued with more than usual ability.

The decree was passed and filed on the 12th day of November, 1873, and the appeal was not taken until the 27th of August, 1874, — more than nine months from the date of the decree. But it is contended that the petition for a rehearing, which was filed before the expiration of the term during which the decree was passed, suspended it, and that the appeal could not be taken until the petition had been finally acted upon, which was not until August, 1874, when it was dismissed. No authority has been cited to sustain this position, and we do not suppose that any can be found. The rule in Equity has been different, and the decree is considered as operative from its date, notwithstanding the filing of a petition for a rehearing, unless a special order has been passed, before it becomes enrolled, suspending it. In the case of Bennett vs. Bennett, 5 Gill, 463, there was a motion to dismiss upon the ground that the appeal was prayed inore than nine months after the date of the decree. The motion was overruled, because the Chancellor, upon the filing of a petition for rehearing, had passed an order, that the decree be set aside and annulled, unless cause be shown within four days of the succeeding term. This was held to be a suspension of the decree, during which time the right of appeal did not exist, but commenced only at the time the suspending order was disposed of. As it was taken within nine months from that date, it was in time and therefore not dismissed. The decision of the Court is based upon the suspending order alone, and it is manifest from their opinion, if there had been no such order the motion to dismiss would have prevailed. In the present case there was no order of suspension passed upon the petition for a rehearing, and the decree cannot be considered as suspended until the final order dismissing it. The appeal from the decree is therefore not in time, and must be dismissed .

(Decided 3rd March, 1875.)

There is also an appeal from the order dismissing the petition for a rehearing. This petition presents matters resting within the discretion of the Court below. It has been so well settled, that an appeal will not lie from the exercise of such discretion, that it is unnecessary to cite authorities in support of it. This appeal must also be dismissed.

Appeals dismissed.